COMMONWEALTH vs. RONALD MOORE.

On July 3, 1987, the defendant, while awaiting trial, became involved in a melee at the Hampden County house of correction. As a result, the

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grand jury returned three indictments, each charging the defendant with assault and battery upon a correctional officer in violation of G. L. c. 127, Section 38B. [Note 1] During his jury trial, the defendant filed a motion for a required finding of not guilty. He claimed that G. L. c. 127, Section 38B, was inapplicable to persons in custody awaiting trial, but applied only to those prisoners serving a sentence. The defendant claimed that he should have been prosecuted under G. L. c. 265, Section 13D, which proscribes any person, not just a prisoner, from committing an assault and battery upon certain public servants, including correctional officers. The judge denied the motion and the jury convicted the defendant on one indictment and acquitted him on the other two indictments.

The defendant claims that G. L. c. 127, Section 38B, has no application to persons in custody awaiting trial because of the concluding words of the statute which read that upon conviction "[s]uch sentence shall begin from and after all sentences currently outstanding and unserved at the time of said assault . . . ." He argues that this wording restricts application of the statute solely to those already serving a sentence at the time of the offense. In particular, the defendant points to the statute's command that such person, if convicted, be given a "from and after" sentence.

General Laws c. 127, Section 38B, clearly extends to persons in custody awaiting trial as well as those serving a sentence. The Legislature defined "prisoner" in G. L. c. 125, Section 1(m), as appearing in St. 1972, c. 777, Section 8, as "a committed offender and such other person as is placed in custody in a correctional facility in accordance with law." [Note 2] Here, the defendant agrees that he was "placed in custody in a correctional facility in accordance with law." There is nothing in G. L. c. 127, Section 38B, that narrows the statutory

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definition found in G. L. c. 125, Section 1(m), to persons in custody serving a sentence. As we read the last sentence of G. L. c. 127, Section 38B, it sets out the mandatory penalty upon conviction. It does not distinguish between persons in custody awaiting trial and those individuals serving a sentence. Both types of prisoners, if convicted of a violation of G. L. c. 127, Section 38B, would receive a sentence which must "begin from and after all sentences currently outstanding and unserved at the time of said assault or assault and battery." If a person in custody is awaiting trial when he commits an offense under G. L. c. 127, Section 38B, any sentence he receives would not be consecutive, unless he happens to have a sentence or sentences "currently outstanding and unserved at the time of said assault or assault and battery."

There was no error by the judge in denying the defendant's motion for a required finding of not guilty.

Judgment affirmed.